Gajanan S/O. Baban Tale vs State Of Maharashtra Thr. P.S.O. ...
2021 Latest Caselaw 11985 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                        CRIMINAL APPEAL NO. 178 OF 2018

  Gajanan S/o. Baban Tale,
  Aged about 46 years,
  R/o. Bhujwada, Tah. Daryapur,
  Dist. Amravati.                                                         . . . APPELLANT

                         ...V E R S U S..

  State of Maharashtra through
  P. S. O., Police Station,
  Dabki Road, Akola.                                                   . . . RESPONDENT

 ------------------------------------------------------------------------------------------------
 Shri Amit Balpande, Advocate (appointed) for appellant.
 Shri S. M. Ghodeswar, A.P.P. for respondent/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 27.08.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. The appellant-accused has challenged the judgment and

order dated 07.11.2017 rendered by the learned 4 th Additional

Sessions Judge, Akola in Sessions Trial No. 162/2016 by which the

appellant has been convicted of the offence under Section 302 of the

Indian Penal Code. The appellant is sentenced to suffer imprisonment

for life and to pay fine of Rs. 10,000/-, in default to suffer

imprisonment for one years.

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3. The case of the prosecution stated in briefly as under :-

Deceased- Ashish Purushottam Tale was son of the

informant- Purushottam Tale (PW5). On 16.05.2016 at about 5 p.m.,

when the informant returned to his house from his work, he came to

know from discussion of the villagers that dead body of deceased-

Ashish was lying near 'Mari Mata Mandir' in the field of Vijendra

Deshmukh. Therefore, the informant alongwith Raju Tale (PW6) went

at the spot. The informant found dead body of his son Ashish with his

head smashed with stone and face stained with blood. The informant

stated that he was having strained relationship with accused- Gajanan

and due to quarrel, he had earlier lodged reports against the accused.

The accused was also not having good relationship with his brother-

Raju Tale (PW6). It is stated that earlier the informant filed complaint

against the accused. It is stated that one Mangala had seen the

accused and the deceased together walking on the front side of her

house on 15.05.2016 between 5.00 to 6.00 p.m. and therefore, the

informant had suspicion on the accused. He, therefore, lodged the

report against the accused with Police Station Murtizapur (Gramin).

4. On receipt of the report, Police Station Officer, Murtizapur

(Gramin) registered an offence vide Crime No. 44/2016 under Section

302 of the Indian Penal Code on 17.05.2016. During the investigation,

the Investigating Officer- Pratapsingh Solanke (PW15) prepared spot

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panchnama. The Investigating Officer recorded the statement of the

witnesses. The blood-stained stone was recovered from the spot. The

Investigating Officer seized clothes of the deceased, arrested the

accused, prepared arrest panchnama and recovered clothes at the

showing of the accused. The Investigating Officer seized blood

samples of the accused and the deceased and sent it to the chemical

analysis. The Investigating Officer filed charge-sheet with Judicial

Magistrate First Class. Since, the offence under Section 302 of the

Indian Penal Code is exclusively triable by the Court of Sessions, the

learned Magistrate committed the case to the Court of Sessions as per

Section 209 of the Code of Criminal Procedure.

5. The learned Sessions Judge framed charge against the

accused, which was explained to him in vernacular to which the

accused pleaded not guilty.

6. During the trial, the prosecution examined 15 witnesses.

The prosecution led circumstantial evidence against the appellant. The

learned Sessions Judge believed the circumstances and convicted and

sentence the appellant in the manner stated in paragraph no. 2 above.

7. We have heard Shri Amit Balpande, learned Advocate for

the appellant appointed to represent the appellant and Shri S. M.

Ghodeswar, learned A.P.P. for respondent/State. We have meticulously

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gone through the deposition of the witnesses. We have perused

various exhibits proved by the prosecution to substantiate their case.

8. The contentions on behalf of the appellant stated briefly

are that the entire case of the prosecution is based on circumstantial

evidence and the chain of the events and circumstances is not at all

complete. The prosecution has failed to prove last seen theory as the

prosecution has not brought on record exact time of death of the

deceased and has failed to prove presence of the accused along with

the deceased at the proximate time before the death. It is submitted

that there is delay in registration of the First Information Report. It is

submitted that the prosecution has failed to prove extra-judicial

confession and motive. It is submitted that clothes of the accused were

recovered from the open space and were not sealed before they being

sent to chemical analysis. Therefore, it is submitted that the judgment

and order of conviction of the appellant is unsustainable in law.

9. Shri S. M. Ghodeswar, learned A.P.P. for respondent/State

pointed out the circumstances, which according to him proved

complicity of the appellant in the murder. According to Shri

Ghodeswar, the prosecution has successfully proved beyond doubt the

homicidal death of deceased- Ashish was caused by the appellant only.

According to him, the circumstantial evidence was complete, and the

appellant had motive. He submitted that the prosecution proved last

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seen theory, extra-judicial confession and recovery of blood-stained

clothes at the showing of the accused and for which no explanation

was furnished by the accused. He, therefore, prayed for dismissal of

the appeal.

10. Before entering into the arena of appreciating the

evidence relating to the circumstance, we first have to decide as to

whether the death of Ashish was homicidal in nature or not. To prove

death of Ashish is homicidal, the prosecution has examined Dr. Gurav

Girigosavi (PW13), who found external and internal injuries while

conducting post-mortem on corpse of deceased- Ashish. He found

following external and internal injuries:-

External Injuries

(i) Decomposition started, skin peeled of from several places of body.

(ii) Head depressed left fronto-parietal region, left eye socket (orbit) depressed with left maxillary region.

(iii) Fracture frontal and parietal left bone of skull, brain matter inside skull.

Internal Injuries

(a) Haemotoma present in left fronto-parietal region, crushed injury left fronto- parietal region.

(b) Multiple fracture and left parietal bone of skull brain matter inside skull.

 (c)      Brain matter depressed. Over the surface of brain Haemorrage structure
 present and
 (d)      Pieces of bone inserted into brain.

11. Dr. Gurav Girigosavi (PW13) stated that cause of death is

"grievous type of injuries to vital organs i.e. Brain". He stated that the

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injuries are sufficient in ordinary course of nature to cause death of

any person. He stated that the injuries in the post-mortem report can

be caused due to heave, hard and blunt object. He stated that the

injuries in the post-mortem report can be caused by seized Article-

Stone. In addition to the testimony of the autopsy surgeon, the

prosecution has proved Inquest Panchnama (Exh.43), which showed

that the injury on head and face of deceased- Ashish. Though, the

defence had given suggestions, which was accepted by Dr. Gurav

Girigosavi (PW13), that any person under the influence of alcohol, if

fell down on stone then he may sustain injury and due to which he

may die. It is pertinent to note that defence has not given specific

suggestion mentioning that injuries reflected in the post-mortem report

could be caused by falling of person on stone. On consideration of the

testimony of Dr. Gurav Girigosavi (PW13), Autopsy Surgeon and

Inquest Panchnama, we have no doubt that the death of Ashish was

homicidal in nature.

12. Since, there is no direct evidence regarding murder of

deceased- Ashish, the prosecution case in the present appeal rests on

circumstantial evidence as there are no eye-witness to the alleged

incident.

13. Before scrutinizing contentious issues emanating from the

case, this Court remind itself of the duty of the Court while

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appreciating circumstantial evidence. It is well established that in a

case resting on circumstantial evidence, all the circumstances brought

out by the prosecution must inevitably and exclusively point to the

guilt of the accused and there should be no circumstance, which may

reasonably be considered consistent with innocence of the accused.

Even in the case of circumstantial evidence, the Court requires to bear

in mind the cumulative effect of all the circumstances in a given case

and weigh them as integrated as a whole. All the proved

circumstances must provide the chain, no link of which must be

missing, and they must unequivocally point to the guilt of the accused

and exclude any hypothesis consistent with his innocence.

14. Keeping in view the aforesaid well-established principle of

law enunciated by Supreme Court in various judgment in criminal case

based on circumstantial evidence, we proceed to consider the instant

appeal.

15. The prosecution has brought the following circumstances,

which according to them are sufficient to prove the guilt of the

accused. The circumstances enumerated by the Trial Court in the

judgment are of the following effect:-

(a) recovery of blood from the spot of incident and its identification;

(b) deceased- Ashish met with homicidal death;

 (c)      accused and deceased last seen together;



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 (d)      extra-judicial confession;

 (e)      motive;

 (f)      recovery of incriminating articles at the instance of accused in

        view of S.27 of the Evidence Act; and

 (g)      recovery of stone and other articles.

16. We would individually take up each circumstance.

The first circumstance, which weighed with the Trial Court

is the body of Ashish was recovered from the spot of incident and its

identification. The prosecution has examined Niranjansingh Chavhan

(PW1), who had first seen the dead body of Ashish on the spot

alognwith stone near it in front of 'Mari Mata Mandir' situated in the

field of Vijendra Deshmukh. He stated that the head of deceased was

stained with blood. He informed the said fact to Datta Nachane,

brother of Digamber Nachane (PW3). Therefore, few persons

including Satish (PW2), Digamber (PW3), Sachin (PW4), the

informant (PW5) and Raju (PW6) gathered on the spot. The dead

body of Ashish was identified by the informant- Purushottam (PW5)

being father of the deceased and Raju (PW6). The defence has not

seriously disputed that the dead body was of deceased- Ashish.

17. Subhash (PW9) deposed that on 17.05.2016, Police called

him to work as panch. The Sport Panchnama was prepared in his

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presence. Raju Khandare acted as another panch. The evidence of

Subhash (PW9), Purushottam (PW5) alongwith Niranjansingh (PW1),

the informant (PW5) and Raju (PW6) have proved recovery of dead

body from the spot and its identification.

18. The next circumstance of homicidal death of Ashish is

already been discussed above, which the prosecution has proved.

19. The third circumstance is last seen theory. To prove last

seen theory, the prosecution has examined Sachin (PW4), who stated

that on 15.05.2016 at about 5.30 p.m. he had been to Masjid Chowk

for purchasing vegetables. He stated that at that time Jitendra Chavan

accompanied him and he had seen deceased- Ashish alongwith

accused- Gajanan. Except the testimony of Sachin (PW4), other

witnesses such as Niranjansingh (PW1), Digambar (PW3),

Purushottam (PW5) and Raju (PW6) are hearsay witnesses on the

point of last seen theory. It is pertinent to note that the prosecution

has failed to prove exact time of death of deceased- Ashish. The

evidence that accused was last seen in the company of the accused

assumes significance with laps of time between the accused and the

deceased were seen together and when the deceased is found dead is

so minimal so as to exclude possibility of supervening event in favour

of the deceased at the hands of another. The prosecution needs to

establish positively that the deceased was last seen with the accused,

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removing any possibility of any person having an opportunity to

commit the crime in question. In absence of any other positive

evidence to conclude that accused and the deceased were last seen

together, it would be hazardous to come to conclusion of guilt in such

case. In absence of proof of exact time of death of the deceased, in our

considered view, the prosecution has failed to prove the circumstances

of last seen theory.

20. The next circumstance is extra-judicial confession made to

Balu (PW8) by the appellant. Balu (PW8) stated that on 19.05.2016,

the accused had been to his house and told him that he smashed

Ashish with stone, on account of quarrel between them. Balu (PW8)

also stated that the accused also told him that he has assaulted Ashish

in front of Devi Temple on 15.05.2016. Therefore, he made phone call

to Raju to confirm the said fact. There is no reliable evidence

produced by the prosecution that alleged extra-judicial confession was

voluntary. The extra-judicial confession by itself is a weak piece of

evidence and such evidence deserves strict scrutiny. There is no other

evidence led by the prosecution to substantiate the claim of Balu

(PW8) and therefore, the said extra-judicial confession cannot form

the sole basis of the conviction.

21. The next circumstance is motive. We get inside into the

motive of the crime after going through the evidence of Purushottam

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(PW5) and Raju (PW6). Both, Purushottam (PW5) and Raju (PW6)

stated that they were having enmity with accused- Gajanan and both

had lodged multiple reports against accused- Gajanan. None of them

have stated that accused- Gajanan was having enmity with deceased-

Ashish. Merely because accused- Gajanan had enmity with father of

Ashish, that by itself would not constitute sufficient motive to commit

murder of deceased- Ashish. We are therefore of the view that

prosecution has failed to prove the circumstance of motive.

22. The next circumstance is recovery of incriminating Articles

at the instance of the accused in view of the Section 27 of the Evidence

Act. The evidence of blood-stained clothes at the spot does not by

itself sufficient to link the appellant with the crime of commission of

murder. Insofar as the incriminating circumstance of blood on the

clothes of the accused is concerned, it needs to be noted that recovery

of clothes, as per recovery panchnama (Exh.36), is from open space

and clothes were not sealed at the time of its seizure. Therefore,

possibility of tampering with clothes by blood-stain cannot be ruled

out. Therefore, the learned Trial Judge was not justified in holding

that the recovery of blood-stained clothes is a circumstance, which is

proved by the prosecution.

23. The last circumstance is recovery of stone and other

articles. As we have discussed earlier that recovery of stone at the spot

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with blood-stain is not sufficient to base conviction of the appellant for

the crime.

24. In our opinion, the circumstance of extra-judicial

confession may arouse suspicion against the appellant or show that

case of prosecution may be true but, Justice P. B. Gajendragadkar in

the oft quoted judgment in the case of Sarwan Singh Vs. State of

Punjab, reported in (1957) AIR (SC) 637 has held that suspicion

however strong cannot take the place of proof. In the said decision,

His Lordship has held that for "may be true" and "must be true", long

distance has to travel and the whole of this distance is to be traveled

by the prosecution by adducing cogent and unimpeachable evidence.

In our judgment, on the circumstance of extra-judicial confession, the

said distance could not said to have been traveled.

25. On perusing the above discussion, we find that the

prosecution has failed to adduce clinching circumstantial evidence,

which conclusively and unerringly points to the guilt of the appellant.

As logical corollary of our opinion, the appellant is to be given benefit

of doubt and he be acquitted.

26. In the result, we pass the following order:-

 (i)              The Criminal Appeal is allowed.





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              (ii)             Judgment and order of conviction and sentence dated

07.11.2017 passed by learned 4th Additional Sessions Judge, Akola in

Sessions Trial No. 162/2016 convicting the appellant for offence

punishable under Section 302 of the Indian Penal Code is hereby

quashed and set aside.

(iii) The appellant is acquitted of offence punishable under

Section 302 of the Indian Penal Code.

(iv) The appellant, who is in jail, shall be released forthwith, if

he is not required in any other offence.

(v) Learned counsel Shri Amit Balpande, appointed by the

Court to represent the appellant, is entitled to receive his professional

fees from the High Court Legal Services Sub Committee at Nagpur and

it is quantified at ₹ 5,000/-. 5,000/-.

                               JUDGE                                    JUDGE




RR Jaiswal